SHRI YOVAN, INDIA CEMENTS EMPLOYEES UNION AND ANR.versusTHE MANAGEMENT OF INDIA CEMENTS LTD. AND ORS.

           SHRI YOVAN, INDIA CEMENTS EMPLOYEES                                 A
                     UNION AND ANR.
                                    v.
   THE MANAGEMENT OF INDIA CEMENTS LTD. AND ORS.

                          OCTOBER 15, 1993
                                                                               B
        [M.N. VENKATACHALIAH, CJ. ANDS. MOHAN JJ.)

       Industrial Disputes Act, 1947 s. JO(J)(C)-Wliether the State Govern-
ment of Tamil Nadu is the appropriate authority in relation to the cement      C
industry so as to make the notification under section JO(l)(C) of the Act
referring a dispute between the employees union and the Management of India
Cement to the Labour Court~eld-Yes.

      The Respondent No. 1 and the Respondents Nos. 3 to 14, who are of
the Contractors emplyed by the First Respondent, had terminated sen-Ices       D
of 300 and odd workers who claimed to have worked continuously for a
period of over 10 years. These workers were neither paid the same wages
nor allowed the same working conditions as were available to the workmen
directly employed by the first Respondent.

      The Appellant-Union of the Workmen employed with the first               E
respondent, raised demand to make contract labour permanent as man·
dated by law by removing the intermediary contractors which was rejected.
Therefore, a dispute was raised and conciliation proceedings Initiated but
failed. On consideration of the failure report and the other relevant facts,
the Govt. of Tamil Nadu issued a Notification on 23rd Sept. 1987. Under        F
Section 10(1) (C) of the Act stating that the dispute between the Union and
the Management of the India Cements Contractors relating to non·
employment of 300 workers be referred for adjudication to the Labour
Court, Madurai. Before the Labour Court the Respondent No. 1 raised a
preliminary contention that the referrence by the State Government is bad
since the Appropriate Authority in relatio.n to the Cement industry is the.    G
Central Government.

      The Labour Court upheld the contention of the l'?irst Respondent
and found that the Cement industry being a controlled industry under the
Act, the reference by the State Government was bad.                            H
                                   381
    382                    SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A           The appellant came in appeal by special Leave.

            Allowing the appeal, this Court

           HELD : In view of the Notification dt. 8.12.1977 issued by the Union
    of India under Section 39 of the Act and the stand taken by the Union of
B   India in their Counter Affidavit, both the Central and the State Govern·
    merits are Appropriate Governments under the Act and both have concur-
    rent jurisdiction in relation to Cement Industry, except in case of Mines
    and quarries forming part of the Cement Industry. That being so, the
    notification issued by the Government of Tamil Nadu dt. 23.1.1986 is a
C   valid notification. [383FH; 386C]

            CIVIL APPEALLATE JURISDICTION: qvil Appeal No. 5454 of
    1993.

          From the Judgment and Order dated 28.8.91 of the Principal Labour
D   Court, Madurai in I.A. No. 189/91 in I.D. No. 56/87.

            P.S. Khera for the Appellant.

            Ms. A. Subhashini for the Respondents.

            The Judgment of the Court was delivered by
E
            MOHAN, J. Leave granted. Delay condoned.

         The appellant is a union of workmen employed in the establishments
   of Respondent No.1 at Sankarnagar in the State of Tamil Nadu. Respon-
   dent No. 1 is a company with majour financial input by various financial
F institutions in the country. Respondent Nos. 3 to 14 are contractors who ·
   were employed by the Resondent No. 1 to do various jobs. At the relevant
   time these respondents employed 300 and odd workers. The services of
   these workers were terminated. They claimed to have worked continously
   for a period of over 10 years. Inasmuch as they were neither paid the same
G wages nor were they allowed the same working conditions allowed by the
   principal employer, namely, Resondent No. 1 to its own workmen. The
  ·appellant union raised demands to make contract labour permanent as
   mandated by law by removing the intermediary contractors. The demands
   were not complied with. Therefore, a dispute was raised. Conciliation
H pro~ took place on various dates. Ultimately on 22.9.86 a failure
                     YOVANv. C.EMP.[MOHAN,J.)                            383

report by Joint Commissioner of Labour, Madras, was submitted. On               A
consideration of the report and the other relevant facts a notification was
issued by the Government of Tamil Nadu on 23rd September, 1987 under
Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred
to as the Act) that the dispute between the union and the management of
India Cements contractors relating to non-employment of 300 workers be          B
referred for adjudication to the Labour Court, Madurai. Pending adjudica-
tion of main dispute, the management (Respondent No. 1) preferred an
Interlocutory Application of determination as a preliminary issue that the
reference by the State of Tamil Nadu is bad since the appropriate authority
in relation to the cement industry is the Central Government. The Principal     C
Labour Court, Madurai, allowed the application by the impugned order
dated 28.8.91 and terminated the proceedings. It is under these circumstan-
ces the Special Leave Petition came to be filed after a delay of 223 days.
Notices were issued on 25.9.92 both on the SLP as well on the application
for condonation of delay.
                                                                                D
       The argument on behalf of the appellant is the finding of the Labour
Court that it is a controlled industry by the Central Government is incor-
rect. Equally, the finding that in view or' the application of the Government
of India dated 15.4.88 that cement industry is a controlled industry under
~e Act and, therefore, the reference by Central Government is bad and           E
cannot be supported. The question of delegation of powers to the State
Government does not arise. The powers exercised by the Central Govern-
ment under the Act are equally exerciseable by the State Government.
Therefore, the impugned order is to be set aside.

       The stand of the appellant union is opposed by the management. The       F
Union of India supports the appellant and filed a counter in which it is
clearly averred that under Notification dated 8.12.77 issued under Section
39 of the Act, the powers exerciseable by the Governemnt of India in
relation to cement ipdustry shall also be exercised by State Governments,
except in the cases of mines and quarries forming part of cement industry       G
where the Central Government alone has jurisdiction. Thus, both the
Central Government and the State Governments have concurrent juriruic-
tion under the Act in relation to cement industry.

      In view of the above, the only short question arises for our deter-       H
    384                  SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A   mination is as to which is the appropriate Government to make a reference
    in this case.

          We need not dwell at length in view of the notification dated 8.12.77
    of the Union of India and the stand taken in the counter affidavit, the
    relevant protion of which is extracted below :
B
                "The Government of India had issued notification No. SO 757
            (E) dated 8.11.1977 wherein it is stated that under section 2(a) of
            the Industrial Disputes Act, 1947, the Central Government has
            specified (for the purpose of the said sub clause) the controlled
            industry engaged in the manufacture and production of cement,
c           which has been declared controlled industry under section 2 of the
            Industrial (Development and Regulation) Act, 1951. By virtue of
            the aforesaid notification the Central Government becomes "ap-
            propriate Government" under the Industrial Disputes Act, 1947,
            in respect of cement industry. A true copy of the aforesaid notifiac-
D           tion dated 8.11.1977 is annexed herewith as Annexure R.I."

                "Subsequently, another notification was published in the
            Gazette of India Extraordinary dated 8.12.1977 wherein the
            Government of India exercise its power under section 39 of the
            Industrial Disputes Act, 1947, it was notified that the powers
E           exercisable by Government of India under the Industrial Disputes
            Act 1947, in relation to cement industry shall also be exercisable
            by the State Governments, except in the case of mines and quarries
            forming part of the cement industry where the Central Government
            alone has jurisdiction. Thus both the Central Government and
F           State Governments have concurrent the jurisdiction in relation to
            cement industry under the Industrial Disputes Act, 1947, except
            in the case of mines and quarries forming part of the cement
            industry. A true copy of said notification dated 8.12.19"/7 is an-
            nexed to this affidavit as Annexure R.11."
G               "In the present special leave petition pertaining to regularisa-
            tion of certain workmen working in the cement factory, engaged
            in the processes connected with transfer of cement, the Central
            Government as well as the State Governments are the appropriate
            Governments under the Industrial Disputes Act, 1947 in view of
H           the isasuance of notifiactions dated 8.12.1977 under section 39 of
                  YOVANv. C.EMP.[MOHAN,J.)                           385

      the Industrial Disputes Act mentioned above."                        A
    The Notification dated 8.12.1977 reads as under :

                    "THE GAZETTE OF INDIA

      Part II-Section 3 - Sub-section (ii) published by Authority.         B
      No. 4520 NEW DELHI, THURSDAY, DECEMBER 8, 1977.

          Separate paging is given to this Part in order that it may be
      filed as a separate compilation.

                     MINISTRY OF LABOUR
                                                                           c
                          NOTIFIACTION

                New Delhi, the 8th December, 1977.

      S.O. 826(E) - In exercise of the powers, conferred by saction 39 D
      of the Industrial Disputes Act, 1947 (14 of 1977) the Central
      Government hereby directs that all the powers exercisable by it .
      under that Act and the rules made thereunder shall, in relation to
     ·the Cement Industry be exercised also by all the State Govern-
      ments, subject to the condition that the Central Government shall E
      continue to exercise all the powers under the said Act and Rules
      made thereunder :-

      (i) relating to mines and quarries even where such mines and

-     quarries form part of the Cement Indwtry; and

      (ii) relating to the dispute between the emplyers who are members
      of the Cement Manufacturers Association Express Building
                                                                           F

      Churchgate, Bombay and their workmen represented by Indian

-     National Cement and Allied Workers Federation, Mazdour
      Karyalaya, Congress House Bombay, which has been referred for
      arbitration in pursuance of Section lOA of the said Act, read with G
      notification No. S.O. 757-E dated 8th November, 1977
      (No.S.11025/9/77/DI(A)/, in terms of the arbitration agreement
      publishd by the notifiaction of the Government of India in the
      Ministry of Labour Order No. L.29013/2177-D.O.IIl(B) dated the
      29th November, 1977,                                               H
    386                 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A                                           /No. S. 11023/9177/Dl(A)/
                                            D.BANDYOPADHYA Y,
                                            Jt. Secy.

                                    !frue copy/attested/

B                                           sd/-
                                    Regional Labour
                                    Commissioner
                                    (Central) Madras".
                                                           .            '
           Therefore, it is clear that both the Central and the State Govem-
C   ments are appropriate governments under the Act. That being so, the
    notification issued. by the Government of Tamil Nadu dated 23.1.87 is a
    valid notification. The stand taken by the respondent management is not
    tenable. Aecordingly the impugned order of the Labour Court is hereby
    set aside. The Civil Appeal will stand allowed. The Labour Court is
D   directed to proceed with the reference in accodance with law most ex-
    peditiously. There shall be no order as to costs.

    A.G.                                                   Appeals allowed.